[Federal Register Volume 80, Number 242 (Thursday, December 17, 2015)]
[Notices]
[Pages 78711-78717]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-31693]



[[Page 78711]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XD283


Taking of Threatened or Endangered Marine Mammals Incidental to 
Commercial Fishing Operations; Proposed Permit

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Notice; request for comments.

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SUMMARY: NMFS proposes to issue a permit for a period of three years to 
authorize the incidental, but not intentional, taking of individuals 
from five marine mammal stocks listed under the Endangered Species Act 
(ESA) by the Bering Sea and Aleutian Islands (BSAI) flatfish trawl, the 
BSAI pollock trawl, and the BSAI Pacific cod longline fisheries. In 
accordance with the MMPA, NMFS must issue this permit provided it can 
make the determinations that: The incidental take will have a 
negligible impact on the affected stocks; a recovery plan for all 
affected stocks of threatened or endangered marine mammals has been 
developed or is being developed; and a take reduction plan and 
monitoring program have been implemented, and vessels in these 
fisheries are registered. NMFS has made a preliminary determination 
that incidental taking from commercial fishing will have a negligible 
impact on the endangered Western North Pacific (WNP) stock of humpback 
whales, endangered Central North Pacific (CNP) stock of humpback 
whales, endangered Western U.S. stock of Steller sea lions, threatened 
Alaska stock of ringed seals, and Alaska stock of bearded seals. 
Accordingly, NMFS solicits public comments on the draft negligible 
impact determination (NID) and on the proposal to issue a permit to 
vessels that operate in these fisheries for the taking of affected 
endangered or threatened stocks of marine mammals.

DATES: Comments must be received by January 19, 2016.

ADDRESSES: You may submit comments, identified by FDMS docket Number 
NOAA-NMFS-2014-0057, by either of the following methods:
    Electronic Submissions: Submit all electronic public comments via 
the Federal e-Rulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2014-0057, click the ``Comment Now!'' icon, 
complete the required fields, and enter or attach your comments.
    Mail: Submit written comments to Jon Kurland, Assistant Regional 
Administrator for Protected Resources, Alaska Region NMFS, Attn: Ellen 
Sebastian, P.O. Box 21668, Juneau, AK 99802-1668.
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NMFS. All comments received are a part of the 
public record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. NMFS will accept anonymous 
comments (enter ``N/A'' in the required fields if you wish to remain 
anonymous). Attachments to electronic comments will be accepted in 
Microsoft Word, Excel, or Adobe PDF file formats only.
    Electronic copies of the draft NID for the affected stocks and 
copies of the recovery plans for humpback whales and Steller sea lions 
are available at http://www.alaskafisheries.noaa.gov/cm/analyses/default.aspx and http://www.nmfs.noaa.gov/pr/recovery/plans.htm#mammals.

FOR FURTHER INFORMATION CONTACT: Kristin R. Mabry, NMFS Alaska Region, 
907-586-7490, [email protected]; or Shannon Betridge, NMFS Office 
of Protected Resources, 301-427-8402, [email protected].

SUPPLEMENTARY INFORMATION:

Background

    NMFS proposes to issue a three-year permit under MMPA section 
101(a)(5)(E) to participants registered in the Alaska BSAI flatfish 
trawl and BSAI pollock trawl fisheries to incidentally take individuals 
from the following marine mammal stocks listed under the ESA: The 
endangered WNP and CNP stocks of humpback whales, endangered Western 
U.S. stock of Steller sea lions, threatened Alaska stock ringed seals; 
and the Alaska stock of bearded seals; and to participants registered 
in the BSAI Pacific cod longline fishery to incidentally take 
individuals from the Alaska stock of ringed seals. The bearded seal 
does not currently have status under the ESA because its ESA listing 
was vacated by the U.S. District Court for the District of Alaska on 
July 25, 2014. NMFS is appealing that decision. In the interim, NMFS 
will continue to consider the effects of fisheries on bearded seals 
under MMPA section 101(a)(5)(E), even though the ESA listing of the 
species is currently not in effect.
    Pursuant to section 101(a)(5)(E) of the MMPA, 16 U.S.C. 1361 et 
seq., NMFS shall for a period of up to three consecutive years allow 
the incidental, but not the intentional, taking of marine mammal 
species listed under the ESA, 16 U.S.C. 1531 et seq., by persons using 
vessels of the United States and those vessels which have valid fishing 
permits issued by the Secretary in accordance with section 204(b) of 
the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 
1824(b), while engaging in commercial fishing operations, if NMFS makes 
certain determinations. NMFS must determine, after notice and 
opportunity for public comment, that: (1) Incidental mortality and 
serious injury will have a negligible impact on the affected species or 
stocks; (2) a recovery plan has been developed or is being developed 
for such species or stock under the ESA; and (3) where required under 
section 118 of the MMPA, a monitoring program has been established, 
vessels engaged in such fisheries are registered in accordance with 
section 118 of the MMPA, and a take reduction plan has been developed 
or is being developed for such species or stock.
    NMFS proposes to issue a permit under MMPA section 101(a)(5)(E) to 
vessels registered in the BSAI pollock trawl, BSAI flatfish trawl, and 
BSAI Pacific cod longline fisheries to incidentally take individuals 
from the WNP and CNP stocks of humpback whales, the Western U.S. stock 
of Steller sea lions, and Alaska stocks of ringed and bearded seals. 
Because other stocks of threatened or endangered marine mammals are not 
taken in Category I or Category II groundfish fisheries (as listed in 
the 2016 List of Fisheries (LOF)), effects to no other species or 
stocks are evaluated for this proposed permit. The data for considering 
these authorizations were reviewed coincident with the preparation of 
the 2016 MMPA List of Fisheries (80 FR 58427, September 29, 2015), the 
2014 marine mammal stock assessment reports (SARs), and recovery plans 
for humpback whales and Steller sea lions.
    Based on observer data and marine mammal reporting forms, the BSAI 
pollock trawl, BSAI flatfish trawl, and BSAI Pacific cod longline 
fisheries are Category II fisheries that operate in the ranges of 
affected stocks. A description of these fisheries can be found in the 
draft NID (see ADDRESSES). These federally-managed fisheries take place 
inside both state waters (from the coastline out to three nautical 
miles) and federal waters (three to two

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hundred nautical miles from shore). The federally-managed fisheries 
inside Alaska state waters are often referred to as state ``parallel'' 
fisheries and are included in this authorization. All other Category II 
fisheries that interact with these marine mammal stocks observed off 
the coasts of Alaska are state-managed fisheries (as opposed to state 
parallel fisheries). Participants in Category III fisheries are not 
required to obtain incidental take permits under MMPA section 
101(a)(5)(E) but are required to report injuries or mortality of marine 
mammals incidental to their operations.
    In accordance with the MMPA, NMFS has determined that incidental 
taking from the BSAI pollock and flatfish trawl and BSAI Pacific cod 
longline fisheries will have a negligible impact on WNP and CNP stocks 
of humpback whales, the Western U.S. stock of Steller sea lions, and 
Alaska stocks of ringed and bearded seals. This proposed authorization 
is based on a determination that the incidental take of these fisheries 
will have a negligible impact on the affected marine mammal stocks; 
recovery plans have been completed for humpback whales and Steller sea 
lions, and NMFS is developing recovery plans for ringed and bearded 
seals; a monitoring program is established, vessels in the fisheries 
are registered, and the necessary take reduction plan (TRP) has been 
developed or is being developed.
    A previous three-year MMPA permit was issued on December 13, 2010, 
for BSAI flatfish trawl, BSAI pollock trawl, BSAI Pacific cod longline, 
and BSAI sablefish pot, all Category II fisheries that were determined 
to have negligible impacts on ESA-listed marine mammal stocks, 
including: Humpback whale (WNP and CNP stocks), Steller sea lion 
(Western and Eastern U.S. stocks), fin whale (northeastern Pacific 
stock), and sperm whale (North Pacific stock) (75 FR 32689, December 
29, 2010). Because that permit has expired, NMFS proposes to issue this 
new three-year permit.

Basis for Determining Negligible Impact

    Prior to issuing a permit to take ESA-listed marine mammals 
incidental to commercial fishing, NMFS must determine if mortality and 
serious injury (M/SI) incidental to commercial fisheries will have a 
negligible impact on the affected species or stocks of marine mammals. 
NMFS satisfied this requirement through completion of a draft NID (see 
ADDRESSES).
    Although the MMPA does not define ``negligible impact,'' NMFS has 
issued regulations providing a qualitative definition of ``negligible 
impact'' as defined in 50 CFR 216.103, and through scientific analysis, 
peer review, and public notice developed a quantitative approach. As it 
applies here, the definition of ``negligible impact'' is ``an impact 
resulting from the specified activity that cannot be reasonably 
expected to, and is not reasonably likely to adversely affect the 
species or stock through effects on annual rates of recruitment or 
survival.'' The development of the approach is outlined in detail in 
the draft NID made available through this notice and was described in 
previous notices for other permits to take threatened or endangered 
marine mammals incidental to commercial fishing (e.g., 72 FR 60814, 
October 26, 2007; 78 FR 54553, September 4, 2013).
    The negligible impact criteria are described below and use the 
Potential Biological Removal (PBR) in their application. The MMPA 
defines PBR as ``the maximum number of animals, not including natural 
mortalities that may be removed from a marine mammal stock while 
allowing that stock to reach or maintain its optimum sustainable 
population and was developed to assess the level of incidental take in 
commercial fisheries.'' The PBR level is the product of the minimum 
population estimate of the stock, one-half the maximum theoretical or 
estimated net productivity rate of the stock at a small population 
size, and a recovery factor of between .1 and 1.0.

Criteria for Determining Negligible Impact

    In 1999, NMFS proposed criteria to determine whether M/SI 
incidental to commercial fisheries will have a negligible impact on a 
listed marine mammal stock for MMPA 101(a)(5)(E) permits (64 FR 28800, 
May 27, 1999). In applying the 1999 criteria, Criterion 1 is whether 
total known, assumed, or extrapolated human-caused M/SI is less than 
10% of the potential biological removal level (PBR) for the stock. If 
total known, assumed, or extrapolated human-caused M/SI is less than 
10% of PBR, the analysis would be concluded, and the impact would be 
determined to be negligible. If Criterion 1 is not satisfied, NMFS may 
use one of the other criteria as appropriate. Criterion 2 is satisfied 
if the total known, assumed, or extrapolated human-caused M/SI is 
greater than PBR, but fisheries-related M/SI is less than 10% of PBR. 
If Criterion 2 is satisfied, vessels operating in individual fisheries 
may be permitted if management measures are being taken to address non-
fisheries-related mortality and serious injury. Criterion 3 is 
satisfied if total fisheries-related M/SI is greater than 10% of PBR 
and less than PBR, and the population is stable or increasing. 
Fisheries may then be permitted subject to individual review and 
certainty of data. Criterion 4 stipulates that if the population 
abundance of a stock is declining, the threshold level of 10% of PBR 
will continue to be used. Criterion 5 states that if total fisheries-
related M/SI are greater than PBR, permits may not be issued for that 
species or stock.
    For its analysis NMFS used the 2014 SARs, which estimate mean or 
minimum annual mortality from observed commercial fisheries. For the 
ice seals, NMFS also reviewed previous incidental take statements (ITS) 
associated with ESA section 7 consultations as indicators of the levels 
of M/SI to these species from groundfish fisheries. ITS included in 
biological opinions on federal fisheries actions estimate take over a 
three-year period. In the case of ringed and bearded seals, NMFS used 
the maximum observed mortality in a given year as the starting point in 
generating the three-year average, as opposed to the annual average 
mortality. Since PBRs for the two ice seals are not currently 
available, NMFS considered both sources of data in the NID analysis for 
making a negligible impact determination of the effects of M/SI from 
groundfish fisheries on those species. The specific ITS comparison 
analysis is available for review in the draft NID that accompanies this 
notice.
    The time frame for the data used in this analysis includes the most 
recent five-year period for which data are available and have been 
analyzed (2008-2012). The NMFS Guidelines for Assessing Marine Mammal 
Stocks (GAMMS) and the subsequent GAMMS II provide guidance that, when 
available, the most recent five-year time frame of commercial fishery 
incidental serious injury and mortality data is an appropriate measure 
of effects of fishing operations on marine mammals (Wade and Angliss 
1997). A five-year time frame provides enough data to adequately 
capture year-to-year variations in take levels, while reflecting 
current environmental and fishing conditions as they may change over 
time. In cases where available observer data are only available outside 
that time frame, as is the case for state-managed fisheries, the most 
recent observer data are used. Where entanglement data from the NMFS 
Marine Mammal Health and Stranding Network are considered, the five-
year time frame from 2008-2012 is used. The draft NID made available 
through this notice provides a complete analysis of the criteria for 
determining whether commercial fisheries off Alaska

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are having a negligible impact on the WNP and CNP stocks of humpback 
whales, Western U.S. stock of Steller sea lions, and Alaska stocks of 
ringed and bearded seals. A summary of the analysis and subsequent 
determination follows.

Description of the Fisheries

    A brief description follows of three Category II federally-managed 
fisheries in the 2016 List of Fisheries (80 FR 58427, September 29, 
2015) with documented M/SI of ESA-listed species during 2008-2012 and 
considered in this NID analysis.

BSAI Flatfish Trawl Fishery

    In 2008, Amendment 80 to the Fishery Management Plan for Groundfish 
of the Bering Sea and Aleutian Islands allocated most of the BSAI 
flathead sole, rock sole, and yellowfin sole to the trawl catcher 
processor sectors using bottom trawl gear. American Fisheries Act 
catcher processors and trawl catcher vessels target yellowfin sole 
allocated to the BSAI trawl limited access sector. Other vessel 
categories and gear types catch some flatfish incidentally in other 
directed fisheries. In 2013, 32 vessels targeted flatfish in the BSAI. 
Rock sole is generally targeted during the roe season, January to 
March. Then these vessels shift to several different targets; notably 
Atka mackerel, arrowtooth flounder, flathead sole, yellowfin sole, 
Pacific cod, and Pacific ocean perch. Vessels also can fish in the Gulf 
of Alaska to fish for arrowtooth, Pacific cod, flathead sole, rex sole, 
and rockfish. In the BSAI, most of the flathead sole, rock sole, and 
yellowfin sole fisheries occur on the continental shelf in the eastern 
Bering Sea in water shallower than 200 meters. Some effort follows the 
contour of the shelf to the northwest and extends as far north as 
Zhemchug Canyon. Very few flathead sole, rock sole, and yellowfin sole 
are taken in the Aleutian Islands due to the limited shallow water 
areas.
    The SARs have documented incidental takes of marine mammals in this 
fishery since 1988. Observer coverage during 2008-2012 was 100%. 
Species taken include bearded seal, harbor porpoise and harbor seal 
(Bering Sea), killer whale (Alaska resident), killer whale (GOA, AI, 
and BS transient), northern fur seal (Eastern Pacific stock), spotted 
seal (Alaska stock), ringed seal (Alaska stock), ribbon seal (Alaska 
stock), Steller sea lion (Western U.S. stock), and Pacific walrus. 
Tables 3-7 in the draft NID report the observed and mean annual 
mortality of WNP and CNP stocks of humpback whales, Western U.S. stock 
of Steller sea lions, and the Alaska stocks of bearded and ringed 
seals.

 BSAI Pollock Trawl Fishery

    In 2013, 121 vessels targeted pollock in the Bering Sea and 
Aleutian Islands management area. The pattern of the recent pollock 
fishery in the BSAI is to focus on a winter, spawning-aggregation 
fishery. The A season fishery is January 20 through June 10. Fishing in 
this season lasts about 8-10 weeks depending on the catch rates. The B 
season is June 10 through November 1. Fishing in the B season is 
typically July through October and has been conducted to a greater 
extent west of 170/W longitude compared to the A season fishing 
location in the southern Bering Sea. Directed fishing is closed for 
pollock in all areas from November 1 to January 20. Fishing is also 
closed around designated rookeries and haulouts out to 20 nm and closed 
within Steller sea lion foraging areas in the Bering Sea and Aleutian 
Islands. The BSAI pollock total allowable catch (TAC) is allocated 40% 
to the A season and 60% to the B season. No more than 28% of the annual 
directed fishing allowance for pollock can be taken inside the Sea Lion 
Conservation Area in the southern Bering Sea before April 1.
    The SARs have recorded incidental takes of marine mammals in this 
fishery since 1988. Observer coverage ranged from 85-98% during 2008-
2012. Species taken include Dall's porpoise (Alaska stock), harbor 
seal, humpback whale (CNP stock), humpback whale (WNP stock), fin whale 
(Northeast Pacific stock), killer whale (GOA, Aleutian Islands, and 
Bering Sea Transient stocks), minke whale (Alaska stock), ribbon seal 
(Alaska stock), spotted seal (Alaska stock), ringed seal (Alaska 
stock), bearded seal (Alaska stock), northern fur seal (Eastern Pacific 
stock), Steller sea lion (Western U.S. stock). Tables 3-7 in the draft 
NID report the observed and mean annual mortality of WNP and CNP stocks 
of humpback whales, Western U.S. stock of Steller sea lions, and the 
threatened Alaska stocks of bearded and ringed seals.

BSAI Pacific Cod Longline Fishery

    This fishery targets Pacific cod with hook and line gear in the 
Bering Sea with 45 permits issued or fished. Fishing effort in this 
fishery occurs within the U.S. EEZ of the Eastern Bering Sea and the 
portion of the North Pacific Ocean adjacent to the Aleutian Islands, 
which is west of 170 [deg] W. longitude up to the U.S.-Russian 
Convention Line of 1867. Management measures for the BSAI groundfish 
fisheries constrain fishing both temporally and spatially. The 
authorized gear, fishing season, criteria for determining fishing 
seasons, and area restrictions by gear type are defined in the 
regulations implementing the BSAI fishery management plan (50 CFR part 
679).
    The SARs have recorded incidental takes of marine mammals in this 
fishery since 1988. Observer coverage ranged 51-64% from 2008-2012. 
Species taken include Dall's porpoise (Alaska stock), killer whale 
(GOA, AI, and BS Transient stocks), northern fur seal (Eastern Pacific 
stock), and ringed seal (Alaska stock). Table 7 in the draft NID 
reports the observed and mean annual mortality of the Alaska stock 
ringed seals.

Negligible Impact Determinations

    The draft NID made available through this notice provides a 
complete analysis of the criteria for determining whether commercial 
fisheries off Alaska are having a negligible impact on WNP and CNP 
stocks of humpback whales, Western U.S. stock of Steller sea lions, and 
the Alaska stocks of bearded and ringed seals. A summary of the 
analysis and subsequent determination follows.

Humpback Whale, WNP Stock

    Criterion 1 was not satisfied because the total human-related 
mortalities and serious injuries are not less than 10% PBR. The PBR 
calculated for this stock is 3.0 animals (Allen and Angliss 2015). The 
annual average M/SI to the WNP stock of humpback whales from all human-
caused sources is 2.16 animals, which is 71.87% of this stock's PBR 
(above the 10% PBR (0.3 animals) threshold). As a result, NMFS cannot 
make a negligible impact determination based on Criterion 1 and the 
other criteria must be examined.
    Criterion 2 was also not satisfied, because fisheries-related 
mortality alone exceeds 10% of PBR. The estimate of fisheries-related 
mortality is 0.9, which is 30% of the PBR.
    NMFS used NID Criterion 3 to evaluate impacts of commercial 
fisheries on the WNP stock of humpback whales because the total 
fisheries related M/SI is greater than 10% of the stock's PBR but less 
than PBR, and the stock is stable or increasing. The total of 0.9 
fisheries-related M/SI per year is above 10% of PBR (0.3), and it is 
below the stock's PBR of 3.0 animals. The 2014 SAR reports a 6.7% 
annual rate of increase over the 1991-1993 estimate using the best 
available information, but acknowledges that number is biased high to 
an unknown degree with no

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confidence limits. Further, there are only minor fluctuations in 
expected fisheries-related M/SI. Using Criterion 3 and the best 
available information on the population growth of the WNP stock of 
humpback whales and on fisheries-related M/SI as reported in the 2014 
SAR, NMFS determines that M/SI incidental to commercial fishing will 
have a negligible impact on the stock.

Humpback Whale, CNP Stock

    Criterion 1 was not satisfied because the total human-related 
mortalities and serious injuries are not less than 10% PBR. The PBR 
calculated for this stock is 82.8 animals. The annual average M/SI to 
the CNP stock of humpback whales from all human-caused sources is 15.89 
animals, which is 19.19% of this stock's PBR (above the 10% PBR (8.28 
animals) threshold). As a result, NMFS cannot make a negligible impact 
determination based on Criterion 1 and the other criteria must be 
examined.
    CNP humpback whales do not precisely fit the criteria as written 
for Criterion 2 or 3. Criterion 2 is satisfied if the total known, 
assumed, or extrapolated human-caused M/SI is greater than PBR, but 
fisheries-related M/SI is less than 10% of PBR. Criterion 2 was not 
satisfied because total human-caused mortality (15.89) does not exceed 
PBR (82.8).
    Criterion 3 is satisfied if total fishery-related M/SI is greater 
than 10% PBR, less than PBR, and the population is stable or 
increasing. The fisheries-related M/SI (3.95) for this stock is 4.77% 
of PBR. The fisheries-related M/SI is less than 10% of PBR and 
therefore less than PBR.
    Although CNP humpback whales do not precisely meet the criteria for 
Criterion 1, 2, or 3, data support a negligible impact determination 
for this stock. The stock's population growth rate is increasing, 
increases in fisheries-related M/SI are limited, and human-caused M/SI 
is below PBR. The 2014 SAR reports a range of annual rates of 
population increase from 4.9-10%, depending on the study and specific 
area. These data suggest that the stock is increasing. The level of 
total human-caused M/SI (15.89 animals) is 19.19% of the PBR and is 
expected to remain below PBR for the foreseeable future. Thus, the 
expected total human-caused M/SI is well below the Criterion 2 M/SI 
threshold supporting a negligible impact determination. Further, there 
are only minor fluctuations in fisheries-related M/SI. The expected 
total fisheries-related M/SI is well below the Criterion 3 M/SI 
threshold supporting a negligible impact determination. NMFS determines 
that, based on the best available information, M/SI incidental to 
commercial fishing will have a negligible impact on the stock.

Steller Sea Lion, Western U.S. Stock

    Criterion 1 was not satisfied for Steller sea lion, Western U.S. 
stock, because the total human-related mortalities and serious injuries 
are not less than 10% PBR. The PBR calculated for this stock is 292 
animals. The annual average M/SI to the Western U.S. stock of Steller 
sea lion from all human-caused sources is 244.9 animals, which is 
83.87% of this stock's PBR (above the 10% PBR (29.2 animals) 
threshold). As a result, NMFS cannot make a negligible impact 
determination based on Criterion 1 and the other criteria must be 
examined.
    Criterion 2 was also not satisfied. The total fishery-related M/SI 
per year is 32.7 animals per year and is 11.2% of the stock's PBR of 
292 animals. Total human-caused M/SI is 83.87% of the stock's PBR of 
292 animals. Because total human-caused M/SI are not greater than PBR, 
and fisheries-related mortality is not less than 10% PBR, NMFS cannot 
make a negligible impact determination based on Criterion 2.
    NMFS used NID Criterion 3 to evaluate impacts of commercial 
fisheries on the Steller sea lion, Western U.S. stock because the total 
fisheries related M/SI is greater than 10% of the stock's PBR but less 
than PBR and the stock is stable or increasing. The total M/SI from 
commercial fisheries of 32.7 animals per year is 11.2% of PBR (above 
10% PBR), and is below the stock's PBR of 292; there are only minor 
fluctuations in expected fisheries-related M/SI. The level of total 
human-caused M/SI is estimated to be below PBR and is expected to 
remain below PBR for the foreseeable future. Survey data collected 
since 2000 indicate that Steller sea lion decline continues in the 
central and western Aleutian Islands but regional populations east of 
Samalga Pass have increased or are stable. Overall, the stock is 
increasing at an annual rate of 1.67 (non-pups) and 1.45 (pups). Using 
the best available information on this stock of Steller sea lions and 
on the fisheries-related M/SI, NMFS determines that M/SI incidental to 
commercial fishing will have a negligible impact on this stock based on 
Criterion 3.

Bearded Seal, Alaska Stock

    The best available information on total fisheries-related M/SI for 
the bearded seal stock is not consistent with thresholds required for 
NMFS to make a negligible impact determination for this stock based on 
Criterion 1. NMFS estimates that total human-caused M/SI is likely 
greater than 10% PBR based on the best available information on minimum 
stock abundance and total human-caused M/SI. Although NMFS cannot 
calculate PBR for this stock with the available information, NMFS 
examined whether total human-caused M/SI for this stock is less than a 
proxy for PBR based on the formula established in the MMPA for 
calculating PBR. Section 3(20) of the MMPA defines PBR as ``the product 
of the following factors: (A) The minimum population estimate of the 
stock (NMIN); (B) one-half the maximum theoretical or 
estimated net productivity rate of the stock at a small population size 
(0.5RMAX); and (C) a recovery factor of between 0.1 and 1.0 
(FR)'' (16 U.S.C. 1362(20)). PBR = NMIN x 
0.5RMAX x FR.
    NMFS evaluated the current human-caused M/SI under the assumption 
that it represents a percentage of the stock's unknown PBR. When 
considering Criterion 1, NMFS rearranged the PBR equation to estimate 
whether total human-caused M/SI for this stock is likely less than 10% 
of a proxy PBR for the stock, NMIN = PBR/(0.5RMAX 
x FR).
    The total human-caused M/SI is 6,790.22 animals. If this total 
human related M/SI of 6,790.22 animals were equal to 10% of the stock's 
PBR, NMIN would need to be 2,263,406 bearded seals (given a 
FR of 0.5 and a recommended pinniped RMAX of 
12%). An NMIN of 2,263,406 is far greater than the crude 
estimate of 155,000 animals based on regional surveys throughout the 
seal's Alaska range provided in the 2010 Status Review and even greater 
than the more recent core area estimate of 61,800. Because this 
population level is highly unlikely, NMFS determines that the annual 
average total human-caused M/SI of 6,790.22 animals is likely greater 
than 10% of PBR for this stock. Therefore, NMFS cannot make a 
negligible impact determination for this stock based on Criterion 1, 
and the other criteria must be examined.
    NMFS used the equation in a similar manner to the process above in 
Criterion 1 to evaluate whether Criterion 2 was satisfied (i.e., if 
total human-caused M/SI is greater than PBR, but fisheries-related M/SI 
is less than 10% of PBR). NMFS first evaluated whether the total human-
caused mortality estimate of 6,790.22 animals is likely greater than 
the stock's proxy PBR. Based on the PBR equation, if the total human-
caused M/SI of 6,790.22 were equal to PBR, the NMIN for this 
stock would need to be 226,340.7. However, core area estimate for the 
central and eastern Bering Sea of 61,800 bearded seals and the 2010 
Status Review estimate of 155,000 are

[[Page 78715]]

both considerably less than 226,340.7. If NMIN is less than 
226,340.7 animals, solving for the proxy PBR level based on the PBR 
equation would result in a proxy PBR level smaller than 6,790.22 
animals. Therefore, NMFS estimates that total human-caused mortality is 
greater than a proxy PBR.
    NMFS then rearranged the PBR equation to evaluate whether 
fisheries-related M/SI for this stock is likely equal to 10% of the 
stock's proxy PBR, NMIN = PBR/(0.5RMAX x 
FR). The annual average fisheries-related M/SI is 2.22 
animals. If the annual average fisheries-related M/SI of 2.22 were 
equal to 10% of the stock's proxy PBR, the proxy PBR level would be 
22.2 animals. Based on the rearranged PBR equation above, an 
NMIN of 740 animals would be required to calculate the proxy 
PBR level of 22.2 animals.
    As indicted above, NMFS reviewed other analyses in which M/SI to 
bearded seals from groundfish fisheries has been evaluated. NMFS issued 
an ITS authorizing take of bearded seals in the 2014 ESA section 7 
consultation on the North Pacific groundfish fisheries. NMFS estimated 
that 18.0 seals would be taken in a three-year period. Using an annual 
average of 6.0 seals as a second estimate for annual fisheries-related 
M/SI, if 6.0 bearded seals were equal to 10% of the stock's proxy PBR, 
the proxy PBR level would be 60 animals. Based on the rearranged PBR 
equation above, an NMIN of 2,000 animals would be required 
to calculate the proxy PBR level of 60 animals.
    Using the best information currently available, the core area 
population estimate for the central and eastern Bering Sea of 
approximately 61,800 bearded seals and the 2010 Status Review estimate 
of 155,000 are both orders of magnitude greater than an NMIN 
of 740 or 2,000 animals. Because these very low population levels are 
highly unlikely, NMFS determines that fisheries-related M/SI is less 
than 10% of a proxy PBR.
    NMFS used NID Criterion 2 to evaluate impacts of commercial 
fisheries on the bearded seal because the total human-caused M/SI are 
likely greater than the stock's PBR, the total fisheries-related M/SI 
are likely less than 10% of the PBR, and management measures are being 
taken to address non-fisheries-related M/SI. Non-fisheries-related M/SI 
as reported in the SARs include subsistence and research. The ESA 
provides take exemption for subsistence harvest of listed species by 
Alaska Natives (16 U.S.C. 1539(e)). Likewise, the MMPA provides take 
exemption for subsistence harvest of marine mammals by Alaska Natives 
(16 U.S.C. 1371(b)). Bearded seals, ringed seals, and other ice seal 
species are co-managed by the Ice Seal Committee and NMFS by monitoring 
subsistence harvest and cooperating on needed research and education 
programs pertaining to ice seals. Currently, the subsistence harvest of 
ice seals by Alaska Natives appears to be sustainable and does not pose 
a threat to the populations.
    Based on NID Criterion 2 and the best available information on 
bearded seal population, fisheries-related M/SI, and total human-caused 
M/SI, NMFS determines that M/SI incidental to commercial fishing will 
have a negligible impact on the stock. This determination is supported 
by review of M/SI incidental to U.S. commercial fishing, revealing 
total commercial fishery M/SI is low, and the fisheries where bycatch 
does occur are monitored extensively. If bycatch rates change, NMFS 
would have that information relatively quickly and could reevaluate the 
NID as necessary. Also, the non-fishery M/SI due to subsistence hunting 
is monitored and although the current subsistence harvest is 
substantial in some areas, there is little to no evidence that 
subsistence harvests have or are likely to pose serious risks to the 
Alaska stock of bearded seals.

Ringed Seal, Alaska Stock

    The best available information on total fisheries-related M/SI for 
the ringed seal stock is not consistent with thresholds required for 
NMFS to make a NID for this stock based on Criterion 1. NMFS estimates 
that total human-caused M/SI is likely greater than PBR based on the 
best available information on minimum stock abundance and total human-
caused M/SI. Although NMFS cannot calculate PBR for this stock with the 
available information, NMFS examined whether total human-caused M/SI 
for this stock is less than a proxy for PBR based on the formula 
established in the MMPA for calculating PBR. As described in the 
Criterion 1 analysis for the bearded seal, NMFS rearranged the PBR 
equation to estimate whether total human-caused M/SI for this stock is 
likely less than 10% of the stock's PBR.
    NMFS estimates that total human-caused M/SI for ringed seals is 
9,571.32 animals. If the total human related M/SI of 9,571.32 animals 
were equal to 10% of the stock's proxy PBR, the proxy PBR would have to 
be 95,713.2 and NMIN for this population would need to be 
3,190,440 ringed seals (given a FR of 0.5 and a recommended 
pinniped RMAX of 12%). Because an NMIN of 
3,190,440 ringed seals is far greater than the best available estimate 
of 170,000 ringed seals in the U.S. EEZ of the Bering Sea in late April 
(Conn et al. 2013), NMFS determines that the annual average M/SI to the 
Alaska stock of ringed seal from all human-caused sources of mortality 
(9,571.32) is likely greater than 10% of a proxy PBR for this stock. 
Therefore, NMFS cannot make a negligible impact determination for this 
stock based on Criterion 1, and the other criteria must be examined.
    NMFS used the equation in a similar manner to the process above in 
Criterion 1 to evaluate whether Criterion 2 was satisfied (i.e., if 
total human-caused M/SI is greater than PBR, but fisheries-related M/SI 
is less than 10% of PBR). NMFS first evaluated whether the total human-
caused mortality estimate of animals is likely greater than the stock's 
proxy PBR. Based on the PBR equation, if the total human-caused M/SI of 
9,571.32 were equal to a proxy PBR, the NMIN for this stock 
would need to be 319,044. However, the best available population 
estimate of 170,000 ringed seals is considerably less than 319,044 
animals. If NMIN is less than 319,044, solving for a proxy 
PBR based on the PBR equation would result in a proxy PBR smaller than 
9,571.32 animals. Therefore, NMFS estimates that total human-caused M/
SI is greater than a proxy PBR.
    NMFS then rearranged the PBR equation to examine whether fisheries-
related M/SI for this stock is likely equal to 10% of the stock's proxy 
PBR, NMIN = PBR/(0.5RMAX x FR). The 
annual average fisheries-related M/SI is 4.12 animals. If the annual 
average fisheries-related M/SI of 4.12 were equal to 10% of the stock's 
proxy PBR, the proxy PBR level would be 41.2 animals. Based on the 
rearranged PBR equation above, an NMIN of 1,373 animals 
would be required to calculate the proxy PBR level of 41.2 animals.
    As with the bearded seals, NMFS also reviewed other analyses in 
which M/SI to ringed seals from groundfish fisheries has been 
evaluated. NMFS issued an incidental take statement authorizing take of 
ringed seals in the 2014 ESA section 7 consultation on the North 
Pacific groundfish fisheries. NMFS estimated that 36.0 seals would be 
taken in a three-year period. Using an annual average of 12.0 seals as 
a second estimate for annual fisheries-related M/SI, if 12.0 seals were 
equal to 10% of the stock's proxy PBR, the proxy PBR level would be 120 
animals. Based on the PBR equation above, an NMIN of 4,000 
animals would be required to calculate the proxy PBR level of 120 
animals.
    Preliminary analysis of the U.S. surveys, which included only a 
small

[[Page 78716]]

subset of the 2012 data, produced an estimate of 170,000 ringed seals 
in the U.S. EEZ of the Bering Sea in late April. This estimate is 
orders of magnitude greater than an NMIN of 1,373 animals or 
4,000 animals. Because these very low population levels are highly 
unlikely, NMFS determined that fisheries-related M/SI is less than 10% 
of PBR.
    Criterion 2 states that if the total human-caused M/SI are greater 
than PBR and fisheries related mortality is less than 10% of PBR, 
``individual fisheries may be permitted if management measures are 
being taken to address non-fisheries-related M/SI.'' Non-fisheries-
related M/SI as reported in the SARs include subsistence and gunshots. 
The ESA provides take exemption for subsistence harvest of listed 
species by Alaska Natives (16 U.S.C. 1539(e)). Likewise, the MMPA 
provides take exemption for subsistence harvest of marine mammals by 
Alaska Natives (16 U.S.C. 1371(b)). Bearded seals, ringed seals, and 
other ice seal species are co-managed by the Ice Seal Committee and 
NMFS by monitoring subsistence harvest and cooperating on needed 
research and education programs pertaining to ice seals. Currently, the 
subsistence harvest of ice seals by Alaska Natives appears to be 
sustainable and does not pose a threat to the populations.
    Based on NID Criterion 2 and the best available information on 
ringed seal population, fisheries-related M/SI, and total human-caused 
M/SI, NMFS determines that M/SI incidental to commercial fishing will 
have a negligible impact on the stock. This determination is supported 
by review of M/SI incidental to U.S. commercial fishing, revealing 
total commercial fishery M/SI is low, and the fisheries where bycatch 
does occur are monitored extensively. If bycatch rates change, NMFS 
would have that information relatively quickly and could reevaluate the 
NID as necessary. Also, the non-fishery M/SI due to subsistence hunting 
is monitored and although the current subsistence harvest is 
substantial in some areas, there is little to no evidence that 
subsistence harvests have or are likely to pose serious risks to the 
Alaska stock of ringed seals.

Conclusions for Proposed Permit

    In conclusion, based on the negligible impact criteria outlined in 
1999 (64 FR 28800), the 2014 Alaska SARs, the best scientific 
information and data available, NMFS has determined that for a period 
of up to three years, M/SI incidental to the BSAI pollock trawl and 
BSAI flatfish trawl fisheries will have a negligible impact on WNP and 
CNP stocks of humpback whales, Western U.S. stock of Steller sea lions, 
and Alaska stocks of bearded and ringed seals. Additionally, NMFS has 
determined that for a period of up to three years, M/SI incidental to 
the BSAI Pacific cod longline fishery will have a negligible impact on 
the Alaska stock of ringed seals.
    The impacts on the human environment of continuing and modifying 
the Bering sea trawl fisheries, including the taking of threatened and 
endangered species of marine mammals, were analyzed in the Biological 
Opinion for Authorization of Groundfish Fisheries under the Fishery 
Management Plan for Groundfish of the Bering Sea and Aleutian Island 
Management Area; in the Alaska Groundfish Harvest Specifications 
Supplemental Information Report; the ESA section 7 Biological Opinion 
that considered effects from the groundfish fisheries on bearded seals; 
in the ESA section 7 Biological Opinion on Oil and Gas Leasing and 
Exploration Activities in the U.S. Beaufort and Chukchi Seas; and in 
the Biological Opinion on the Authorization of the Alaska Groundfish 
Fisheries Under the Proposed Revised Steller Sea Lion Protection 
Measures.
    Because this permit would not modify any fishery operation and the 
effects of the fishery operations have been evaluated fully in 
accordance with NEPA, no additional NEPA analysis is required for this 
permit. Issuing the proposed permit would have no additional impact to 
the human environment or effects on threatened or endangered species 
beyond those analyzed in these documents.

Recovery Plans

    Section 4(f) of the ESA requires that NMFS develop recovery plans 
for ESA-listed species, unless such a plan will not promote the 
conservation of the species. Recovery Plans for humpback whales and 
Steller sea lions have been completed (see ADDRESSES). NMFS is 
developing recovery plans for the Alaska stocks of both bearded and 
ringed seals.

Vessel Registration

    MMPA section 118(c) requires that vessels participating in Category 
I and II fisheries register to obtain an authorization to take marine 
mammals incidental to fishing activities. Further, section 118(c)(5)(A) 
provides that registration of vessels in fisheries should, after 
appropriate consultations, be integrated and coordinated to the maximum 
extent feasible with existing fisher licenses, registrations, and 
related programs. MMPA registration for participants in the BSAI trawl 
and longline fisheries has been integrated with the Federal groundfish 
limited entry permit process of the Federal Vessel Monitoring System.

Monitoring Program

    BSAI trawl and longline fisheries considered for authorization 
under this permit are monitored by NMFS-certified observers in the 
North Pacific Groundfish Observer Program. The rate of observer 
coverage is high (ranging from 50-100%) and is recorded by fishery and 
by year in the draft NID analysis. Accordingly, as required by MMPA 
section 118, a monitoring program is in place for the BSAI Pollock 
trawl, flatfish trawl, and Pacific cod longline fisheries.

Take Reduction Plans

    MMPA section 118 requires the development and implementation of a 
Take Reduction Plan (TRP) in cases where a strategic stock interacts 
with a Category I or II fishery. With the exception of the bearded 
seal, the stocks considered for this permit are designated as strategic 
stocks under the MMPA because they are listed as threatened or 
endangered under the ESA (MMPA section 3(19)(C)). The three fisheries 
considered for this permit are Category II fisheries. Therefore, the 
four listed stocks and three fisheries meet the triggers for convening 
a take reduction team (TRT) and developing a TRP.
    The obligations to develop and implement a TRP are further subject 
to the availability of funding. MMPA section 118(f)(3) contains 
specific priorities for developing TRPs. At this time, NMFS has 
insufficient funding available to simultaneously develop and implement 
TRPs for all strategic stocks that interact with Category I or Category 
II fisheries. As provided in MMPA sections 118(f)(6)(A) and (f)(7), 
NMFS used the most recent SARs and LOF as the basis to determine its 
priorities for establishing TRTs and developing TRPs. Through this 
process, NMFS evaluated the WNP and CNP stocks of humpback whale, the 
Western U.S. stock of Steller sea lions, the Alaska stock of bearded 
seals, and the Alaska stock of ringed seals as lower priorities 
compared to other marine mammal stocks and fisheries for establishing 
TRTs, based on M/SI levels incidental to those fisheries and population 
levels and trends. Accordingly, given these factors and NMFS' 
priorities, developing TRPs for these five stocks in these three 
fisheries will be deferred under section 118 as other stocks/fisheries 
are a higher priority for any available funding for establishing new 
TRTs.

[[Page 78717]]

Solicitation for Public Comments

    NMFS solicits public comments on the proposed permit and the 
preliminary determinations supporting the permit. As noted in the 
summary above, all of the requirements to issue a permit to the 
following Federally-authorized fisheries have been satisfied: BSAI 
pollock trawl, BSAI flatfish trawl, and BSAI Pacific cod longline. 
Accordingly, NMFS proposes to issue a permit to participants in the 
BSAI pollock and flatfish trawl Category II fisheries for the taking of 
individuals from the WNP and CNP stocks of humpback whales, Western 
U.S. stock of Steller sea lions, Alaska stock of bearded seals, and the 
Alaska stock of ringed seals (the that occurs within the U.S. Exclusive 
Economic Zone (EEZ) of the Beaufort, Chukchi, and Bering Seas) 
incidental to the fisheries' operations, and proposes to issue a permit 
to participants in the BSAI Pacific cod longline Category II fisheries 
for the taking of individuals from the Alaska stock of ringed seals 
incidental to the fisheries' operations (Table 1). As noted under MMPA 
section 101(a)(5)(E)(ii), no permit is required for vessels in Category 
III fisheries. For incidental taking of marine mammals to be authorized 
in Category III fisheries, any mortality or serious injury must be 
reported to NMFS.

  Table 1--List of Fisheries Authorized To Take Specific Threatened and
  Endangered Marine Mammals Incidental to Commercial Fishing Operations
------------------------------------------------------------------------
            Fishery                  Category       Marine mammal stock
------------------------------------------------------------------------
HI deep-set (tuna target)        I                False killer whale,
 longline.                                         MHI IFKW stock
                                                   Humpback whale, CNP
                                                   stock Sperm whale,
                                                   Hawaii stock
CA thresher shark/swordfish      I                Humpback whale, CA/OR/
 drift gillnet (>14 in mesh).                      WA stock Sperm whale,
                                                   CA/OR/WA stock
HI shallow-set (swordfish        II               Humpback whale, CNP
 target) longline/set line.                        stock
AK Bering Sea/Aleutian Islands   II               Humpback whale, CNP
 flatfish trawl.                                   stock Humpback whale,
                                                   WNP stock Steller sea
                                                   lion, Western U.S.
                                                   stock Bearded seal,
                                                   Alaska stock Ringed
                                                   seal, Alaska stock
AK Bering Sea/Aleutian Island    II               Humpback whale, CNP
 pollock trawl.                                    stock Humpback whale,
                                                   WNP stock Steller sea
                                                   lion, Western U.S.
                                                   stock Bearded seal,
                                                   Alaska stock Ringed
                                                   seal, Alaska stock
AK Bering Sea/Aleutian Islands   II               Ringed seal, Alaska
 Pacific cod longline.                             stock
WA/OR/CA sablefish pot.........  II               Humpback whale, CA/OR/
                                                   WA stock
------------------------------------------------------------------------


    Dated: December 11, 2015.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2015-31693 Filed 12-16-15; 8:45 am]
BILLING CODE 3510-22-P